Remedial Collapse in Portland

Last week in Portland, federal officers seized at least two protesters without probable cause, threw them in unmarked vans, and interrogated them inside a federal courthouse. There is little question that these seizures violated the Fourth Amendment. But whether there will be any meaningful legal remedy for these wrongs remains in doubt. 

As anticipated by Michael, Judge Mosman of the US District Court for Oregon ruled on Friday that Oregon lacked standing to challenge the federal government's seizures of its citizens. The decision turned on parens patriae doctrine, which allows a state to sue on behalf of its citizens when it has an interest apart from the interests of the private parties and a "quasi-sovereign interest" that has been violated. Judge Mosman ruled that Oregon lacked a quasi-sovereign interest in preventing its citizens from being arrested without probable cause, at least where only two citizens have been unlawfully seized so far. Also, as in Lyons v. City of Los Angeles, the state lacked standing to seek an injunction against further unlawful seizures, because it could not prove those seizures will occur in the future. Finally, the state couldn't assert its citizens' rights to be free from chilling effects on their speech, because citizens can "bring indivdual lawsuits to vindicate those rights." 

This last argument is especially troubling. So far, no citizen seized without probable cause, thrown in a van, and interrogated in a federal courthouse has filed a lawsuit. Why not? There are several potential deterrents to individual lawsuits. When suing a federal officer for constitutional violations, plaintiffs typically cannot recover attorney's fees, under 28 U.S.C. 2412. Compensatory damages are likely to be limited in these cases, and the Supreme Court has generally limited punitive damages to a maximum of ten times compensatory damages. And qualified immunity, where officers can only be held liable for violating clearly established law, may bar recovery in this case. Many courts have treated qualified immunity as a sort of "one bite rule" for constitutional violations, allowing plaintiffs to recover only when the exact factual scenario at issue has arisen in a previous case. In Portland, although the government's actions plainly violated the Fourth Amendment, it is unlikely that courts have previously ruled on the precise fact pattern of a seizure without probable cause in the context of an ongoing protest plus travel in a van plus interrogation in a courthouse followed by release within 20 minutes. Courts applying the ultra-fact-specific version of qualified immunity might find that it applies here. On the other hand, some courts have been a bit more flexible in finding law clearly established, especially in cases involving First Amendment expression. But the prospects for substantial financial recovery for individuals are poor overall.
As my former colleague Leah Litman has written, it's a problem when courts deny one remedy on the ground that another remedy is available, only for that remedy to fail as well. The remedies of parens patriae suits and individual suits appear to be "collapsing." And robust Fourth Amendment rights are not much good if no one can get a remedy when they're violated.

How do we fix this? Courts could adopt a more pragmatic approach to qualified immunity, denying it when police activity clearly violates the constitution, even if the exact scenario at issue hasn't arisen before. Or courts or legislatures could get rid of qualified immunity altogether. But even that may not lead to meaningful individual recoveries for most constitutional violations by police. 

In light of this, courts could also relax state standing restrictions, which seem to lack a compelling policy justification. (And standing in general seems to have little grounding in text or history.) The Supreme Court's ruling in Lyons was designed to prevent individual citizens from trying to set municipal policy. But similar concerns don't exist when a state is challenging federal encroachment--the state is trying to preserve state policy. Likewise, the idea that a state lacks a quasi-sovereign interest in preventing federal officers from seizing and interrogating its citizens (even just a handful of them) is a narrow and crabbed concept of state interests. The sovereignty of Oregon over its territory and its citizens is very much at issue. 

The severe practical limits on individual recoveries against federal agents should inform parens patriae doctrine. Where individuals can't effectively vindicate their constitutional rights, their state should be allowed to do so on their behalf.